Volume 66, Issue 1

The Irrationality of Punishing Homelessness–Julie A. Nice:

The Supreme Court upheld the criminalization of public survival by unhoused people in City of

Grants Pass v. Johnson in June 2024. This article examines that decision and considers why Grants Pass

had not enforced its camping ban against unhoused people when the author visited the city one year later.

One important reason is that Oregon had enacted legislation requiring that any camping bans in the state

be objectively reasonable considering the totality of circumstances, including the impact on unhoused

persons. Given the ongoing lack of shelter in Grants Pass after the Supreme Court’s ruling, the city’s

unhoused residents obtained a new state court injunction against the city’s camping ban based on the

recent state law. While enforcement of a camping ban when unhoused residents have nowhere else to go

may not be cruel and unusual punishment (according to the Supreme Court), it is still not objectively

reasonable in the totality of current circumstances.

Considering the actions of Grants Pass in historical and contemporary context, this article argues

that the city’s facial discrimination against unhoused persons requires an Equal Protection analysis. It

examines the relevant rationality review cases leading up to the notorious “no scrutiny whatsoever” of

Dandridge v. Williams, which remains tainted by the “economic whip” justification behind the state’s

stringent cap on welfare benefits. This article argues, nonetheless, that a close look at the relevant

rationality review canon—from 1911 to 2025—reveals that the Court’s various iterations of rationality

review consistently require an actual, factual, contextual, and practical review of the purported relation

between the government’s means and its ends to ensure that the action is in fact supported by plausible

reasons. Given the repeated public statements by city councilors of Grants Pass that they aim to banish

unhoused residents, and the overwhelming evidence showing that criminalization is ineffective (because

it tends to increase homelessness), harmful (because it prolongs the suffering of unhoused persons), and

more expensive than the more effective alternative of providing housing, this article concludes that

believing criminalization will solve homelessness is simply beyond rational belief.

The Constitutional Ramifications of Grants Pass–Alanis Galdamez, Nicholas D. Conway, and Ellen M. Slatkin:

The brief and ambiguous wording of the Eighth Amendment has permitted courts to adopt a variety

of interpretations. These interpretations have been applied inconsistently through different periods of the

Amendment’s history, but the U.S. Supreme Court has never established a singular, definitive method for

interpreting the Amendment. That is, until the 2024 decision in City of Grants Pass, Oregon v. Johnson,

where the Court rejects any interpretation of the Eighth Amendment that is not strictly originalist in

nature. This article analyzes the Court’s reasoning in Grants Pass and explores the potential consequences

of adopting such a narrow interpretation of the Eighth Amendment. We find that an originalist approach

to the Eighth Amendment could jeopardize decades of precedent, result in more unfavorable rulings for

criminal defendants, and ultimately lead to a decline in the Supreme Court’s institutional legitimacy.

Criminalizing Survival: How the Grants Pass Decision is Intensifying the Homelessness Crisis in California and Beyond–Laura Riley:

This article examines the intensifying criminalization of homelessness in the United States since

the Supreme Court’s 2024 decision in Grants Pass v. Johnson, which removed the ability of people to

challenge laws that prohibit survival behaviors in public places like sitting, sleeping, or lying down, under

the Eighth Amendment’s Cruel and Unusual Punishment Clause. The article explores the legal and

practical challenges in documenting criminalization of homelessness, analyzes national and California-

specific legislative trends and enforcement practices, and assesses the impacts on unhoused populations.

The article concludes with policy recommendations to shift the state of homelessness criminalization from

one of punitive approaches to humane solutions.